»{» I  ji  i{t  >{i  «{t  »{« «j« «{« «{»■{« »{« »j«  »{«»{««}«>{  «{««{■  i{»  ■{■  ■}■■}»■{■  i{i  iji  iji  ii< 


IRRIGATION 


AND 


WATER  RIGHTS 


THE  NEW  LAW 

.-> 

f 

As  amended  by  the 
Eighth  Session  of 
the  Legislature  of 
the  State  of  Utah 


IRRIGATION 


AND 

WATER  RIGHTS 


THE  NEW  LAW 

As  amended  by  the 
Eighth  Session  oF 
the  Legislature  oF 
the  State  oF  Utah 


1909 


STAR  PRINTING  COMPANY 


SALT  LAKE  CITY 
1909 


Digitized  by  the  Internet  Archive 
in  2018  with  funding  from 

University  of  Illinois  Urbana-Champaign  Alternates 


https://archive.org/details/irrigationwaterrOOutah 


33 3 >7 


TITLE  40. 


Irrigation  and  Water  Rights. 


X 

CHAPTER  I. 

^  State  Engiiieer.  Water  Rights  on  Streams,  Etc. 


If 


Section  1261.  Office  of  State  Engineer  created.  Powers 
and  duties.  There  shall  be  a  State  Engineer,  who  shall  be 
appointed  by  the  Governor  of  the  State  to  be  confirmed  by  the 
Senate.  He  shall  hold  his  office  for  the  term  of  four  years  and 
until  his  successor  shall  have  been  appointed  and  qualified.  He 
shall  have  general  supervision  of  the  waters  of  the  State  and 
f  their  measurement,  apportionment  and  appropriation,  and 
all  division  superintendents  and  district  supervisors.  He 
shall  have  power  to  make  and  publish  such  rules  and  regula¬ 
tions  as  he  may  deem  necessary  from  time  to  time  to  fully 
carry  out  the  provisions  of  this  title  and  secure  the  equitable 
and  fair  apportionment  of  the  water  according  to  the  respec¬ 
tive  rights  of  appropriators.  No  person  shall  be  appointed  to 
the  office  of  State  Engineer  who  has  not  such  theoretical 
knowledge  and  practical  experience  and  skill  as  shall  fit  him 
for  the  position.  R.  S.  ’98,  Sec.  2451;  ’01,  p.  141;  ’03,  p.  88; 
’05,  p.  145. 


1262.  Salary  and  allowances.  The  State  Engineer  shall 
receive  a  salary  of  three  thousand  dollars  per  annum,  pay¬ 
able  in  quarterly  installments  by  the  State  Treasurer  upon 
warrants  drawn  by  the  State  Auditor.  When  the  State  Engin- 
neer  is  called  away  from  his  office  on  official  business,  he  shall 
be  entitled  to  his  actual  traveling  expenses,  which  shall  be  paid 
out  of  any  money  appropriated  for  that  purpose,  on  the  cer. 
tificate  of  said  State  Engineer,  approved  by  the  State  Board 
of  Examiners.  R.  S.  ’98,  Sec.  2451;  ’01  pp.  142,  143;  ’03,  p.  88;  ’05, 
p.  145. 


4 


1263.  Office  at  Capital.  The  State  Engineer  shall  keep 
his  office  at  the  State  capital.  R.  S.  ’08,  Sec.  2451;  ’01,  p.  142; 
’03,  p.  89;  ’05,  p.  146. 

1264.  Oath  and  bottd.  Before  eatering  upon  the  duties 
of  his  office,  the  State  Engineer  shall  take  and  subscribe  an 
oath  before  some  officer  authorized  by  the  laws  of  the  State 
to  administer  oaths,  to  faithfully  perform  the  duties  of  nis  of¬ 
fice.  He  shall  file  with  the  Secretary  of  State  said  oath  and 
his  official  bond  in  the  penal  sum  of  five  thousand  dollars, 
with  not  less  than  two  sureties,  to  be  approved  by  the  State 
Board  of  Examiners,  and  conditioned  for  the  faithful  dis¬ 
charge  of  the  duties  of  his  office,  and  for  the  delivery  to  his 
successor  or  other  officer  appointed  by  the  Governor  to  re¬ 
ceive  the  same,  of  all  moneys,  books  and  other  property  be¬ 
longing  to  the  State  then  in  his  hands  or  under  his  control, 
or  with  which  he  may  be  legally  chargeable  as  such  officer. 
R.  S.  ’98,  Sec.  2451;  ’01,  p.  142;  ’03.  p  89;  ’05,  p.  146. 

1265.  Report  to  Governor.  The  State  Engineer  shall 
prepare  and  render  to  the  Governor  biennially,  and  oftener 
if  required,  full  and  true  reports  of  his  work  relating  to  the 
matters  and  duties  devolving  upon  him  by  virtue  of  his  office, 
which  biennial  report  shall  be  delivered  to  the  Governor  on 
or  before  the  31st  day  of  December  of  the  year  preceding  the 
regular  session  of  the  Legislature.  He  shall  become  conver¬ 
sant  with  the  waterways  of  the  State,  and  its  needs  as  to  ir¬ 
rigation  matters,  and  in  his  reports  to  the  Governor  he  shall 
make  such  suggestions  as  to  the  amendment  of  existing  laws 
or  the  enactment  of  new  laws  as  his  information  and  exper¬ 
ience  shall  suggest.  He  shall  keep  on  file  in  his  office  full  and 
proper  records  of  his  work,  including  all  field  notes,  computa¬ 
tions,  and  facts  made  or  collected  by  him,  all  of  which  shall 
be  dulj^  certified  by  him,  and  be  part  of  the  records  of  his 
office  and  the  property  of  the  St  ate. ^  All  records,  maps,  and 
other  papers  recorded  and  filed  in  the  office  of  the  State  Engin¬ 
eer  shall  be  open  to  the  public  during  business  hours,  and 
copies  thereof,  certified  by  said  engineer,  shall  be  furnished  on 
payment  of  the  fees  provided  for  by  Section  970x.  R.  S.  ’98, 
Sec.  2458;  ’01,  p.  143;  ’03,  p.  89;  ’05,  p.  146. 

1266.  Duties  of  engineer.  May  be  co-operative  with 
National  Government.  The  State  Engineer  shall  make  a 
complete  hydrographic  survey  of  each  river  system  and  water 
source  of  the  State,  beginning  such  work  upon  those  streams 


5 


and  sources  which  are  most  used  for  irrigation,  and  from  the 
data  so  obtained  the  State  Engineer  shall  construct  maps, 
which  shall  exhibit  the  essential  facts  relating  to  the  supply, 
diversion,  and  use  of  the  water  of  each>of  such  river  system 
or  water  sources.  He  shall  also  collect  such  other  facts  as 
will,  in  his  Judgment,  aid  in  ascertaining  the  existing  rights  to 
the  use  of  the  water  and  in  determining  the  volume  of  the 
surplus  or  unappropriated  water,  if  any,  of  each  of  such 
streams  or  sources.  He  shall  have  general  supervision  of  the 
appropriation  of  all  surplus  or  unappropriated  water  in  the 
manner  provided  by  law.  Said  surveys  and  collections  of 
facts  shall  include  the  location  of  all  suitable  sites  for  dams 
and  reservoirs,  and  a  determination  of  the  approximate  ca¬ 
pacity  and^cost  of  each.  In  doing  such  w  ork,  the  State  En¬ 
gineer  may  co-operate  wdth  the  agencies  of  the  National  Gov¬ 
ernment  engaged  in  similar  work  within  the  State,  for  the 
purpose  of  interchanging  information  and  avoiding  the  un¬ 
necessary  duplication  of  w’ork.  The  State  Engineer  shall  have 
a  seal  which  he  shall  affix  to  all  certificates  issued  from  his 
office.  R.  S.  ’98,  Sec.  2452;  ’01.  p.  142;  ’03,  p.  89;  ’05,  p.  146. 

1  267.  Id.  Notice  to  be  given.  Before  commencing  the 
hydrographic  survej^  of  any  river  system  or  water  source,  the 
State  Engineer  shall  cause  notice  to  be  published  in  some 
newspaper  having  general  circulation  on  said  river  system 
or  water  source,  stating  the  time  and  place  of  beginning  said 
survey,  and  said  notice  shall  be  published  continously  in  said 
newspaper  for  a  period  of  not  less  than  fifteen  days  immedi¬ 
ately  prior  to  the  commencement  of  said  w^oik  ’03,  p.  90; 
’05,  p.  147. 

1268.  Must  examiue  plans  of  dams  exceeding  five  feet 
in  height,  and  inspect  dams.  Duplicate  plans,  drawings,  and 
specifications  for  any  dam  above  five  feet  in  height,  across  the 
natural  channel  of  a  running  stream,  or  of  any  other  dam  in¬ 
tended  to  retain  w’ater  above  ten  feet  in  height,  shall  be  sub¬ 
mitted  to  the  State  Engineer  for  his  approval,  who  shall  ex¬ 
amine  such  plans,  drawings,  and  specifications,  and,  if  he  ap¬ 
proves  the  same,  he  shall  return  one  copy  of  each  such  plans, 
drawings,  and  specifications,  with  his  approval,  to  the  party 
or  parties  submitting  the  same,  and  file  the  other  in  his  office. 
If  the  State  Engineer  disapproves  any  of  such  plans,  draw^- 
ings,  or  specifications,  he  shall  return  the  same,  with  his  rea¬ 
sons  for  such  disapproval.  The  State  Engineer  shall  have  au¬ 
thority  to  keep  an  inspector  on  any  such  dam  during  the  con- 


(5 


structiou  thereof,  and  to  see  that  the  work  is  done  in  accord¬ 
ance  wdth  the  plans,  drawings,  and  specifications,  and  the 
State  Engineer  may  require  the  parties  constructing  the  same 
to  make  any  additions  or  alterations  during  the  construction 
which  he  considers  necessary  for  the  security  of  the  work,  the 
safety  of  persons,  or  the  protection  of  property.  Any  person, 
corporation,  or  association  beginning  the  construction  of  any 
such  dam  before  the  plans,  drawings,  and  specifications  shall 
have  been  submitted  to  and  approved  by  the  State  Engineer, 
or  proceeding  with  such  work  in  the  absence  of  an  inspector 
appointed  by  said  engineer,  or  who  shall  fail  to  comply  with 
any  of  the  requirements  made  by  him  in  pursuance  of  this 
section,  shall  be  guilty  of  a  misdemeanor.  R.  S.  ’98,  Sec.  2453; 

’01,  p.  146;  ’03,  p.  90;  ’05,  p.  147. 

1269.  Id.  Dam  or  works  examined,  when.  Should  any 
person,  corporation,  or  association  residing  on  or  owning 
land  in  the  neighborhood  of  any  completed  dam  or  diverting 
works,  apply  to  the  State  Engineer  in  writing,  requesting  an 
examination  of  such  dam  or  works,  the  State  Engineer  may 
order  an  examination  thereof.  Before  doing  so,  he  may  re¬ 
quire  the  applicant  for  such  examination  to  deposit  a  sum  of 
money  sufficient  to  pay  the  expenses  of  the  examination,  and 
in  case  the  application  appears  to  him  not  to  have  been  justi¬ 
fied,  he  may  cause  the  whole  or  part  of  such  expense  to  be  paid 
out  of  such  deposit.  In  case  the  request  appears  to  the  State 
Engineer  to  have  been  justified,  he  may  require  the  owner  of  the 
works  to  pay  the  whole  or  any  part  of  the  expenses  of  such 
examination.  R.  S.  ’98,  Sec.  2456;  ’01,  p.  146;  ’03,  p.  90;  ’05,  p. 

148. 

1270.  Id  May  inspect  ditches,  etc.,  and  require  altera¬ 
tion.  The  State  Engineer  shall  have  authority  to  examine  and 
inspect,  during  construction,  any  ditch  or  other  diverting 
works, and,  at  the  time  of  such  inspection,  he  may  order  the  par¬ 
ties  constructing  the  same  to  make  any  addition  or  alteration 
which  he  considers  necessary  for  the  security  of  such  works,  * 
the  safety  of  persons,  or  the  protection  of  property.  Any  per¬ 
son  refusing  or  neglecting  to  comply  with  such  requirements 
of  the  State  Engineer  shall  be  guiltyof  a  misdemeanor.  But  the 
provisions  of  sections  1268-1270  shall  not  apply  to  works  con¬ 
structed  by  the  National  Government.  ’03,  p.  91;  ’05,  p.  148. 

1271.  State  Eugineer  to  briug  actiou  to  determine 
water  rights;  jurisdictiou  of  District  Court.  When  the 
State  Engineer  has  completed  the  hydrographic  survey  of  any 


7 


river  system  or  water  source,  be  shall  file  a  wfitten  state¬ 
ment  with  the  clerk  of  the  district  court  of  the  county  in 
which  the  same  is  situated,  or  if  the  system  or  source  extends 
into  more  than  one  county,  the  statement  should  be  filed  in 
any  county  which  embraces  any  part  of  such  river  system  or 
water  source  that  the  State  Engineer  shall  select  as  most 
convenient  for  the  water  users  of  the  system  or  source.  Said 
statement  shall  set  forth  the  fact  of  the  completion  of  such 
survey,  the  names  and  post-office  addresses  of  all  persons, 
corporations,  and  associations  using  water  of  said  river 
system  or  water  source,  so  far  as  the  same  are  known  to  the 
State  Engineer,  and  shall  contain  such  other  facts  and  infor¬ 
mation  as  he  may  deem  necessary.  On  the  filing  of  such 
statement,  the  district  court  in  the  county  where  the  same 
is  filed  shall  have  exclusive  jurisdiction  to  determine  all  water 
rights  on  said  river  system  or  water  source,  in  accordance 
with  the  provisions  of  this  Title.  ’01,  p.  143:  ’03,  p.  91;  ’05,  p. 
148. 

1272.  Id.  Notice  to  be  given  to  Claimants  to  file  state¬ 
ments.  Within  thirty  days  after  the  filing  of  the  statement 
mentioned  in  the  next  preceding  section,  the  clerk  of  the  court 
in  which  the  same  shall  be  filed  must  give  public  notice  that 
all  persons  claiming  the  right  to  the  use  of  any  water  of  said 
river  system  or  water  source  must  file  a  written  statement 
with  the  clerk  of  said  court,  within  six  months  after  the  first 
publication  of  said  notice,  setting  forth  their  respective  claims 
to  the  use  of  such  water,  which  notice  shall  be  published  at 
least  once  a  week  for  three  successive  months  in  some  news¬ 
paper  printed  and  published  within  the  boundaries  of  said 
river  system  or  water  source  and  having  a  general  circulation 
therein;  or,  if  there  be  no  such  newspaper,  then  it  shall  be  pub¬ 
lished  in  some  newspaper  printed  and  published  in  this  State 
and  having  a  general  circulation  on  said  river  system  or 
water  source.  The  clerk  of  said  court  shall  also  mail,  by 
registered  letter,to  each  of  the  persons,  corporations,  or 
associations  whose  names  and  addresses  are  given  in  such 
statement  filed  by  the  State  Engineer,  a  copy  of  said  notice, 
and  a  blank  form  on  which  said  claimant  shall  present,  in 
writing,  as  provided  in  the  next  succeeding  section,  all  the 
particulars  relating  to  the  appropriation  of  the  water  of  said 
river  system  or  water  source  to  which  he  lays  claim.  ’03,  p. 
91;  ’05,  p.  148. 

1273  Id.  Claimants  to  file  statements  of  water  rights 
with  the  Court.  Each  person,  corporation  or  association  claim- 


8' 


iD'g  the  right  to  use  any  water  of  said  river  system  or  water 
source  shall,  within  six  months  after  the  first  publication  of 
the  notice  provided  for  in  the  next  preceding  section,  file  in  the 
office  of  the  clerk  of  the  court  giving  said  notice  a  statement, 
in  writing,  which  shall  be  signed  and  verified  by  the  oath  of 
the  claimant,  and  shall  Include  as  near  as  may  be  the  follow¬ 
ing:  The  name  and  postoffice  address  of  the  person,  corpora¬ 
tion,  or  association  making  the  claim;  the  nature  of  the  use 
on  which  the  claim  of  appropriation  is  based;  the  flow  per 
second  of  water  used  and  the  time  during  which  it  has  been 
used  each  year;  the  name  of  the  stream  or  other  source  from 
which  the  water  is  diverted;  the  place  on  such  stream  or 
source  where  the  water  is  diverted,  and  the  nature  of  the 
diverting  works;  the  date  when  the  first  work  for  diverting 
the  water  was  begun,  and  the  nature  of  such  work;  the 
dimensions,  grade,  shape,  and  nature  of  the  diverting  chan¬ 
nel,  as  originally  constructed;  the  date  when  the  original 
diverting  channel  was  completed;  the  date  when  the  water 
was  first  used,  the  flow  per  second  and  the  time  during 
which  the  water  was  used  the  first  year;  the  date  and  nature 
of  each  subsequent  change  made  in  the  original  diverting 
channel;  the  flow  per  second  of  the  water  used  and  the  time 
it  was  used  each  year  between  each  of  the  changes  so  made,  and 
the  dimensions,  grade,  shape,  and  nature  of  the  present  divert¬ 
ing  channel;  the  place  where  and  the  manner  in  which  the  water 
was  first  used;  the  nature  of  each  subsequent  change  in  the 
place  or  manner  of  use,  and  the  place  and  manner  of  present 
Use;  and  such  other  facts  as  will  clearly  define  the  ex¬ 
tent  and  nature  of  the  appropriation  claimed.  If  the  water 
claimed  to  have  been  appropriated  is  used  for  irrigation,  the 
statement  shall  show,  in  addition  to  the  above  required 
facts,  the  area  of  land  irrigated  the  first  year  and  each  sub¬ 
sequent  year;  the  total  area  at  present  irrigated,  and  its  loca¬ 
tion  in  the  section,  township,  and  range  wherein  it  is  situated; 
the  character  of  the  soil  and  the  kind  of  crops  raised  during 
the  first  year  of  use  and  the  first  year  after  each  subsequent 
change  of  channel,  and  during  the  last  year  in  which  the 
water  was  applied. 

If  the  water  claimed  to  have  been  appropriated  is  used 
for  developing  power,  the  statement  shall  show,  in  addition 
to  the  above  required  facts,  the  number,  size,  and  kind  of 
water  wheels  employed;  the  head  under  which  each  wheel  is 
operated;  the  extent  of  the  power  produced,  ana  the  purposes 
for  which  and  the  places  where  it  is  used;  and  the  point 
where  the  water  is  returned  to  the  natural  stream. 


9 


If  the  water  claimed  to  have  been  appropriated  is  used 
for  mining’,  the  statement  shall  show,  in  addition  to  the 
above  required  facts,  the  name  of  the  mine  and  the  mining 
district  in  which  it  is  situated;  the  nature  of  the  material 
mined,  and  the  place  where  the  water  is  returned  to  the 
natural  channel  of  the  stream.  Within  sixty  days  after  the 
expiration  of  the  six  months  allowed  for  filing  statements  of 
claims,  the  State  Engineer  shall  tabulate  the  facts  con¬ 
tained  in  the  different  statements  filed;  a  copy  of  said  tabu¬ 
lation  shall  be  immediately  filed  in  the  office  of  the  clerk  of 
said  court,  and  a  copy  in  the  office  of  the  county  recorder  of 
each  county  which  embraces  any  part  of  said  river  system  or 
water  source.  ,03,  p.  92;  '05,  p.  149. 

1274.  Id.  Statements  to  be  filed.  Failure  to  make 
statement  a  bar.  The  clerk  of  said  court  shall  enter  the 
statement  in  a  book  to  be  kept  for  that  purpose  and  shall 
file  and  preserve  the  same  in  his  office,  noting  the  date  of 
filing.  The  filing  of  each  statement  shall  be  considered 
notice  to  all  persons  of  the  claim  of  the  party  making  the 
same,  and  any  person  failing  to  make  and  deliver  such  state¬ 
ment  of  the  claim  to  the  clerk  of  the  court  within  six 
months  after  the  the  first  publication  of  the  notice  pro¬ 
vided  for  in  the  next  preceding  section  shall  be  forever  barred 
and  estopped  from  subsequently  asserting  any  rights  there¬ 
tofore  acquired  to  the  use  of  water  of  said  river  system  or 
water  source,  and  shall  be  held  to  have  forfeited  all  rights 
to  the  use  of  said  water  theretofore  claimed  by  him;  provided, 
that  any  claimant  upon  whom  no  other  service  of  said  notice 
shall  be  made  than  by  publication  in  the  newspaper  may 
apply  to  the  court  for  permission  to  file  a  statement  of  claim 
after  the  time  therefor  has  expired,  and  the  court  or  judge 
thereof,  may  extend  the  time  for  filing  said  statement,  not 
exceeding  one  year  from  the  first  publication  of  said  notice; 
but,  before  said  time  is  extended,  the  applicant  shall  give 
notice  by  publication  in  some  newspaper  having  general  cir¬ 
culation  on  said  river  system,  to  all  other  persons  interested 
in  the  water  of  that  river  system  or  water  source, 
and  shall  make  it  appear  to  the  satisfaction  of  the 
court  that  during  the  pendency  of  the  proceedings  he  had  no 
actual  notice  thereof  in  time  to  appear  and  file  a  statement 
and  make  proof  of  his  claim;  and  all  parties  interested  may 
present  affidavits  as  to  the  matter  of  actual  notice  of  appli¬ 
cation.  ’03,  p.  93;  ’05,  p.  150. 


10 


t  275  Id.  Referee  to  be  appointed.  At  the  expiitition' 
of  six  months  after  the  first  publication  of  the  aforesaid 
notice,  the  district  Ci)urt  of  the  county  in  which  said  state¬ 
ments  of  claim  have  been  filed  may  appoint  a  referee  or 
or  referees,  not  exceeding  three,  to  take  testimony  and 
determine  the  rights  of  said  claimants  to  the  use  of  the  water 
of  said  river  system  or  water  source,  as  in  other  equity  cases. 
Any  claimant  may  object  to  the  appointment  of  any  person 
as  referee  for  the  same  cause  for  which  challenges  for  cause 
may  be  taken  to  a  petit  juror  in  the  trial  of  a  civil  action. 
Such  objection  must  be  heard  and  disposed  of  by  the  court,  or 
a  judge  thereof,  and  affidavits  may  be  read  and  witnesses- 
examined  concerning  the  same.  ’03,  p.  93;  ’05,  p.  151. 

1276.  Id.  Oath,  Power  of  referee  The  referee  or  ref¬ 
erees,  before  proceeding  to  hear  any  testimony,  must  be  sworn 
well  and  truly  to  hear  and  determine  the  facts  and  issues  re¬ 
ferred  to  them,  and  true  findings  render  according  to  the  evi¬ 
dence,  and  he  or  they  shall  have  power  to  administer  oaths  to 
all  witnesses  produced  before  him  or  them.  ’03,  p.  93;  ’05,  p. 
151 

1277.  Id.  Statemetits  iti  place  of  pleadings.  Maps  and 
records  of  eogitieer’s  office  evidence.  The  statements  filed 
1)3’  the  claimants  shall  stand  in  the  place  of  pleadings,  and 
issue  ma3"  be  made  thereon.  The3’  shall,  unless  the  court  de¬ 
termines  the  matter  itself  without  a  reference,  be  referred  and 
delivered  to  the  referee  or  referees,  with  all  other  files  and  pa¬ 
pers  relating  to  water  claims  of  said  river  system  or  water 
source,  including  the  statement  and  map  filed  by  the  State 
Engineer,  who  shall,  before  the  expiration  of  the  six  months 
allowed  for  filing  statements  of  claim,  as  aforesaid,  file  with 
the  clerk  of  said  court,  and  with  the  county  recorder  of  each 
county  which  embraces  any  part  of  said  river  S3’stem  or 
water  source,  a  cop3’  of  the  map  of  said  river  S3’stem  or  water 
source,  made  in  pursuance  of  his  survey  thereof;  and  when¬ 
ever  requested  so  to  do,  the  State  Engineer  shall  furnish  the 
court  or  referee  or  referees  with  any  information  which  he  may 
possess,  or  copies  of  any  of  the  records  of  his  office  which  re¬ 
late  to  the  water  of  said  river  system  or  water  source;  and  in 
all  proceedings  for  the  determination  of  the  rights  of  claim¬ 
ants  to  the  water  of  said  river  S3’stem  or  water  source,  the 
said  m  ip.s  and  records,  or  certified  copies  thereof,  shall  be 
competent  and  prima  facie  evidence  of  the  facts  stated  there, 
in  or  delineated  thereon.  ’03,  p.  93;  ’05,  p.  151. 


11 


1278.  Id.  Amsudmetits  permitted.  Powers  of  referee. 

The  referee  or  referees  shall  have  power  to  allow  amendments 
to  any  statement  or  pleading,  as  the  conrt  might  do,  and 
upon  the  same  terms  and  with  like  effect.  He  or  they  shall 
liave  power,  and  it  shall  be  the  duty  of  the  conrt,  or  referee 
or  referees  to  take  testimony  at  such  times  and  places  within 
the  boundaries  of  the  river  system  or  water  source  as  may  be 
convenient  to  the  respective  claimants  interested,  and  the 
court,  or  referee  or  refereesishall  determine  the  rights  of  all 
said  claimants  as  hereinafter  provided.  The  court,  referee  or 
referees  shall  give  not  less  than  fifteen  days  notice  to  the 
claimants,  stating  when  and  where  he  or  they  will  begin  to 
take  testimony;  said  notice  shall  be  published  in  some  news¬ 
paper  having  general  circulation  on  said  river  s^^stem  or 
water  source,  and,  upon  the  date  named  in  the  notice,  the 
court,  referee  or  referees  shall  begin  to  take  the  said  testi¬ 
mony,  and  shall  continue  the  same  until  all  the  testimony 
relating  to  claims  to  water  of  said  river  system  or  water 
source  is  completed;  (provided,)  that  a  notice  shall  be  served 
upon  each  claimant  at  least  fifteen  days  before  the  testimony 
upon  his  or  its  claim,  stating  the  time  and  place,  when  and 
where  such  testimony  will  be  taken;  and  said  notice  shall  be 
served  in  the  same  manner  as  a  summons  issued  out  of  the 
•district  court.  But  he  or  they  may  grant  adjournments  from 
time  to  time  as  occasion  may  require,  and  during  all  of  said 
time  the  map  or  maps  and  other  records  furnished  by  the 
State  Engineer,  as  hereinbefore  provided,  shall  be  opened  to 
the  inspection  of  all  parties  interested.  ’03,  p.  94;  ’05,  p.  151. 

1279.  Id.  Any  interested  party  may  contest. 

Any  person,  corporation,  or  association  owning  any  irri¬ 
gation  works,  or  claiming  any  interest  in  the  water  of  said 
river  system  or  water  source,  may  contest  the  rights  of  any 
person,  corporation,  or  association  that  has  filed  statements 
of  claim  for  any  water  of  said  river  system  or  water  source, 
by  filing  a  written  statement  of  the  grounds  of  such  contest 
with  the  clerk  of  said  court,  within  thirty  days  after  the  filing 
of  the  tabulation  of  facts  provided  for  in  section  1273;  which 
statement  of  contest  shall  be  verified  by  the  oath  of  the  con¬ 
testant.  Upon  the  filing  of  said  contest  the  referee  or  referees 
shall  fix  the  time  for  hearing  the  sam^,  which  date  shall  be 
not  less  than  thirty  days  nor  more  than  sixty  days  from  tne 
time  when  the  notice  is  served  on  the  party,  which  notice  and 
the  return  thereof  shall  be  made  in  the  same  manner  as 
summons  is  served  in  civil  actions  in  the  district  courts  of 
this  State.  ’03,  p.  94;  ’05,  p.  152.  * 


12 


1280.  Subpoenas  for  witnesses  The  refeiee  or  referees 
shall  have  power  to  issue  subpoenas  to  witnesses  which  shall 
be  served  in  the  same  manner  as  subpoenas  issued  out  of  the 
district  court,  and  all  witnesses  so  subpoenaed  shall  attend 
and  testify,  and  produce  books  and  papers  and  documents, 
as  required,  before  such  referee  or  referees,  and  said  witnesses 
shall  receive  the  same  fees  as  in  civil  cases  in  the  district 
court,  to  be  paid  by  the  party  or  parties  against  whom 
the  contest  shall  be  finally  determined.  ’03,  p.  94;  ’05,  p.  152. 

1281.  Id.  Referees’ findings.  On  the  completion  of  the 
evidence,  the  referee  or  referees  shall  state,  in  writing,  the 
facts  found  by  him  or  them,  as  to  each  claim  submitted,  and 
the  conclusions  of  law  in  relation  thereto,  separately,  and 
shall  report  the  same,  with  a  form  of  decree  to  the  district 
court;  and  said  court  may  review  said  report  and  enter 
decree  thereon,  or  set  aside,  alter,  or  modify  the  same  and 
enter  decree  thereon  so  altered  or  modified,  and,  when  neces¬ 
sary,  may  require  the  referee  or  referees  to  amend  his  or  their 
reports.  All  the  testimony  taken  by  any  referee  or  referees 
shall  be  stenographically  reported,  and  the  same,  together 
with  all  other  evidence  in  the  matter,  shall  be  transmitted  to, 
preserved,  and  filed  in  the  office  of  the  clerk  of  said  district 
court,  with  the  report  of  such  referee  or  referees.  Notice  of 
the  filing  of  the  report  of  the  referee  or  referees  shall  be 
given  by  the  clerk,  as  the  court  may  direct;  and  exceptions  to 
the  lindings  and  report  of  the  referee  may  be  taken  by  the 
parties,  as  the  court  shall  prescribe  by  rule.  .03,  p.  95;  ’05, 
p.  152. 

1282.  Id.  Effect  of  decree  The  decree  shall  determine 
and  establish  the  rights  of  the  several  claimants  to  the  use  of 
the  water  of  said  river  system  or  water  source;  and  among 
other  things  shall  set  forth  the  name  and  postoffice  address 
of  the  person,  corpora, tion,  or  association  entitled  to  the  use 
of  the  water;  the  quantity  of  water  in  acre-feet  or  the  flow  of 
water  in  second  feet  to  be  used;  the  purpose  for  which  the 
the  water  is  to  be  used;  the  time  during  which  the  water  is  to 
be  used  each  year;  the  name  of  the  stream  or  other  source 
from  which  the  water  is  diverted;  the  priority  number  of  the 
right;  the  date  of  the  right,  and  such  other  matter  as  will 
fully  and  completely  define  the  right  of  said  person,  corpora¬ 
tion,  or  association  to  the  use  of  the  water.  ’03,  p.  95;  ’05, 
p.  153. 


13 


1283,  Id.  Decree  may  be  appealed  from.  The  decree  so 
entered  by  the  district  court  may  be  appealed  from  to  the 
supreme  court,  in  like  manner  as  from  decrees  and  judgments 
in  other  cases;  (provided,)  that  such  appeal  shall  be  taken 
within  six  months  after  the  entry  of  said  decree,  and  all  pro¬ 
ceedings  on  appeal  shall  be  conducted  according  to  the  pro¬ 
visions  of  the  code  of  civil  proceedure,  and  the  practice  on 
appeals  from  the  district  court  to  the  supreme  court.  ’03,  p. 
95;  ’05,  p.  153. 

1  284.  Id.  Certificate  of  water  right  to  be  issued.  If 

no  appeal  is  taken  from  said  decree  within  six  months  after 
the  same  has  been  entered,  or,  if  the  case  is  appealed,  within 
thirty  days  after  the  final  decree  is  entered,  it  shall  be  the 
duty  of  the  clerk  of  the  court  making  said  decree  to  issue  to 
each  person,  corporation, or  association  having  been  awarded 
the  use  of  water  by  said  decree,  a  certificate  in  duplicate, 
attested  under  the  seal  of  the  court,  setting  forth  the  sub¬ 
stance  of  said  decree,  as  specified  in  Section  1282.  One  copy  of 
said  certificates  shall  be  transmitted,  in  person  or  by  regis¬ 
tered  mail,  to  the  appr{^priator,  who  shall,  within  thirty 
days,  have  the  same  recorded  in  the  office  of  the  county  recor¬ 
der  of  the  county  in  which  the  water  is  diverted  from  its 
natural  channel,  aud  the  other  shall  be  delivered  to  the  State 
Engineer,  and  filed  in  his  office  as  part  of  the  records  thereof. 
TUe  letter  “A”  shall  be  prefixed  to  the  priority  number  of 
each^certificate  so  issued  to  distinguish  it  from  certificates 
issued  by  the  State  Engineer.  ’03,  p.  95;  ’05,  p.  153.  - 

1285.  Id.  Proceedittgs  whea  judge  or  referee  is 
claimant.  If  the  referee  shall  be  a  claimant  to  any  water  of 
said  river  system  or  water  source,  all  testimony  and  evidence 
pertniniug  to  his  claim  shall  be  taken  by  the  district  court 
of  the  county  in  which  the  statements  are  filed;  and  if  the 
district  judge  is  a  claimant  of  any  of  the  water  of  said  river 
system  or  water  source,  he  shall  file  his  statement  in  the 

district  court  of  the  adjoining  district,  and  a  copy  of  the 

•  * 

statement  in  the  court  of  his  own  county.  In  such  case  the 
court  of  the  adjoining  district  shall  receive  and  act  upon  the 
referee’s  report  and  enter  decree  in  the  matter.  ’03,  p.  96;  ’05, 
p.  154. 

STATE  WATER  DISTRICTS. 

1286.  State  to  be  divided  into  water  divisious  aud  dis¬ 
tricts.  To  enable  an  equitable  and  orderly  apportionment 
of  the  water  to  be  made  among  the  several  persons,  corpora- 


14 


tions,  and  associations,  according  to  their  respective  rights/ 
the  State  shall  be  divided  into  water  divisions  by  the  State 
Engineer,  who  shall  subdivide  the  same  into  districts,  whicli 
shall  be  so  constituted  as  to  secure  the  best  protection  to  the 
water  users  and  the  most  economical  supervision  on  the  part 
of  the  State.  Said  water  divisions  and  districts  shall  be 
created,  from  time  to  time,  as  necessitj'^  therefor  arises.  The 
divisions  shall  be  designated  by  names,  and  the  districts  by 
numbers.  ’01,  p.  143;  ’03,  p.  96;  ’05,  p.  154. 

1287.  Id.  Superititetidetits  and  supervisors.  There 
shall  be  a  superintendent  of  each  water  division,  who  shall  be 
appointed  by  the  State  Engineer  with  the  consent  of  the 
Governor,  and  shall  hold  his  position  during  the  pleasure  of 
the  Engineer.  There  shall  be  a  supervisor  for  each  water 
district  appointed  by  the  Board  of  Countj^  Commissioners  of 
the  county  in  which  he  serves,  who  shall  hold  his  position 
during  the  pleasure  of  said  board.  ’01,  p.  144;  '03,  p.  96;  ’05, 
p.  154. 

1287x  Id.  Shall  give  boud.  Every  supervisor  and 
water  commissioner  before  entering  on  his  duty  shall  give  a 
bond  to  the  State  in  the  penal  sum  of  $1,000  for  the  faithful 
performance  of  his  duty.  ’07,  p.  56. 

1288.  Id.  Duties  of  superiutendeut.  The  superinten¬ 
dent  of  each  water  division  shall  have  control  of  the  district 
supervisors  and  of  the  apportionment  of  the  water  in  the 
several  disB-icts  of  his  division, under  the  direction  of  the 
State  Engineer.  He  shall  execute  the  laws  of  the  State,  and 
enforce  the  regulations  of  the  State  Engineer,  relative  to  the 
distribution  of  water,  and  perform  such  other  duties  as  shall 
be  assigned  to  him  by  the  State  Engineer,  under  whose 
general  supervision  he  shall  act.  ’03,  p.  96;  ’05,  p.  154. 

1288x.  Id.  Duties  of  supervisors.  The  supervisor  of 
each  district  shall  apportion  the  water  in  the  natural  stream 
or  streams  of  his  district  among  the  several  ditches  taking 
water  therefrom,  according  to  their  respective  rights,  under 
the  direction  of  the  superintendent  of  his  division.  He  shall  so 
apportion,  regulate,  and  control  the  use  of  the  waters  of  all 
streams  within  his  district  as  will  prevent  waste.  ’01,  p.  144; 
’03,  p.  97;  ’05,  p.  154. 

1288x1.  Id.  Assistauts  to  supervisors.  Each  super¬ 
visor  shall  have  power,  in  cases  of  emergency,  with  the  con¬ 
sent  of  the  superintendent  of  his  division,  to  employ  suit- 


15 


able  assistants  to  aid  hiin  in  the  discharge  of  his  duties. 
The  employment  of  all  such  assistants  shall  terminate  when 
the  emergency  ceases  to  exist,  or  when  directed  by  the  super¬ 
intendent  of  the  division.  ’01,  p.  14.5;  ’03,  p.  97;  ’05,  p.  154. 

1288x2.  Appeal  from  superiutetideiit  or  supervisor  to 
eugiueer.  Any  person  who  may  deem  himself  injured  or  dis¬ 
criminated  against  by  the  enforcement  of  any  rule  or  regula¬ 
tion  or  by  act  of  a  division  superintendent  or  district  super¬ 
visor,  may  apply  to  the  State  Engineer  for  relief  b^’’  filing  with 
him  a  statement  of  the  manner  in  which  he  is  injured  or  dis¬ 
criminated  against.  ’03,  p.  97;  ’05,  p.  155. 

1288x3  Compeusatiou  of  superiuteudeut.  NEach  divis¬ 
ion  superintendent  shall  receive  from  the  State  such  compen¬ 
sation  as  shall  be  fi.xed  by  the  State  Engineer,  and  the  same 
shall  be  determined  with  reference  to  the  extent  and  character 
of  the  service  performed  by  each.  ’03,  p.  97;  ’05,  p.  155. 

1288x4.  Compeusatiou  of  supervisor.  Each  district 
supervisor  shall  keep  a  true  and  just  account  of  the  time 
spent  by  him  in  performing  his  duties,  stating  the  time  spent 
in  each  county,  respectively,  into  which  his  district  may  ex¬ 
tend,  and  shall  present  a  true  copy  thereof,  verified  by  oath, 
to  the  Board  of  County  Commissioners  of  the  county  in  which 
the  work  may  have  been  done.  And  the  said  Board  of  County 
Commissioners  shall,  upon  approval  thereof  by  the  superin¬ 
tendent  of  the  water  division,  allow  him  the  sum  of  three  dol¬ 
lars  per  day  for  each  day  he  shall  have  been  actively  em¬ 
ployed,  to  be  paid  by  the  county  in  which  the  work  has  been 
performed.  He  shall,  in  like  manner,  keep  and  report  the 
time  of  all  assistants  employed  in  his  district,  which,  when 
appro vea  in  the  manner  aforesaid,  shall  be  paid  by  the  Board 
of  County  Commissioners  of  the  county  in  which  the  work 
was  done,  at  the  rate  of  two  dollars  per  day.  ’01,  p.  145;  ’03, 
p.  97;  ’05,  p.  155. 


CHAPTER  2. 

Appropriatiott  of  water;  proceedings;  certificate. 

1288x3.  Rights  to  uuappropriated  water.  Rights  to 
the  use  of  any  of  the  unappropriated  water  in  the  State  may 
be  acquired  by  appropriation,  in  the  manner  hereinafter  pro- 


16 


vided,  and  not  otherwise.  The  appropriation  must  be  for 
some  useful  or  beneficial  purpose,  and,  as  between  appropria- 
tors,  the  one  first  in  time  shall  be  first  in  right.  R.  S.  ’98,  Sec. 
1261,  1262;  M)3,  p.  97;  ’05,  p.  155. 

1288x6  Application  for  unappropriated  water.  Any 

person,  corporation,  or  association,  to  hereafter  acquire  the 
right  to  the  use  of  any  public  water  in  the  State  of  Utah, 
shall,  before  commencing  the  construction,  enlargement,  or 
extension  of  any  ditch,  canal,  or  other  distributing  works,  or 
performing  similar  work  tending  to  acquire  the  said  right  or 
appropriation,  make  an  application  in  writing  to  the  State 
Engineer.  Such  application  shall  be  upon  a  blank  to  be  fur¬ 
nished  by  the  State  Engineer,  and  shall  set  forth  the  name 
and  postofiice  address  of  the  person,  corporation,  or  associa¬ 
tion  making  the  application;  the  nature  of  the  proposed  use 
for  which  the  appropriation  is  intended;  the  quantity  of 
water  in  acre  feet  or  the  flow  of  water  in  second  feet  to  be 
used,  and  the  time  during  which  it  is  to  be  used  each  year;  the 
name  of  the  stream  or  other  source  from  which  the  water  is  to 
be  diverted;  the  place  on  such  stream  or  source  where  the  water 
is  to  be  diverted, and  the  nature  of  the  diverting  works;  and  the 
dimensions,  grade,  shape,  and  nature  of  the  proposed  divert¬ 
ing  channel;  and  such  other  facts  as  will  clearly  define  the  full 
purpose  of  the  proposed  appropriation.  If  the  proposed  use 
is  for  irrigation,  the  application  shall  show,  in  addition  to 
the  above  required  facts,  the  legal  subdivisions  of  land  pro¬ 
posed  to  be  irrigated,  with  the  total  area  thereof,  and  the 
character  of  the  soil.  If  the  proposed  use  is  for  developing 
power,  the  application  shall  show,  in  addition  to  the  above 
required  facts,  the  number,  size,  and  kind  of  water  wheels  to 
be  employed;  the  head  under  which  each  wheel  is  to  be  oper¬ 
ated;  the  extent  of  the  power  to  be  produced,  and  the  pur¬ 
poses  for  which  and  the  places  where  it  is  to  be  used;  also,  the 
point  where  the  water  is  to  be  retured  to  the  natural  stream 
or  source.  If  the  proposed  use  is  for  mining,  the  application 
shall  show,  in  addition  to  the  above  required  facts,  the  name 
of  the  mine  and  the  mining  district  in  which  it  is  situated, 
the  nature  of  the  mineral  mined,  and  the  place  where  the 
water  is  to  be  returned  to  the  natural  stream  or  source..  The 
place  of  diverson  and  the  place  of  return  of  the  water  shall 
be  designated  with  reference  to  the  United  States  land  corners 
or  mineral  monuments,  when  either  the  point  of  diversion  or 
the  point  of  return  shall  be  situated  within  six  miles  of  the 
nearest  United  States  land  corner.  The  storage  of  water  by 


17 


means  of  a  reservoir  shall  be  regarded  as  a  diversion  and  the 
points  of  diversion  in  such  case  shall  be  deemed  to  include  the 
point  where  the  water  is  taken  from  the  stream  and  the  cen¬ 
ter  of  the  impounding  dam  of  the  reservoir.  The  lands  to  be 
inundated  by  the  reservoir  shall  be  described  as  nearly  as 
may  be,  and  by  Government  subdivisions  if  upon  surveyed 
land,  and  the  area  of  the  surface  thereof  when  tho  reservoir 
is  filled  shall  be  given.  R.  8.  ’98,  Sec  1268,  1269;  ’03,  p.  98; 
’05,  p.  155;  ’U9,  pp.  84,  85. 

1288x7.  Action  of  Engineer  thereon.  On  receipt  of 
said  application  it  shall  be  the  duty  of  the  State  Engineer 
to  make  an  endorsement  thereon  of  the  date  of  its  receipt, 
and  to  make  a  record  of  such  receipt  in  a  book  kept  In  his 
office  for  that  purpose.  It  shall  be  his  duty  to  examine  said 
application  and  ascertain  if  it  sets  forth  all  the  above 
required  facts,  and  if  not,  it  shall  be  returned  with  the  state¬ 
ment  of  correction,  amendments,  or  changes  required,  within 
thirty  days  after  its  receipt,  and  sixty  days  shall  be  allowed 
for  the  rehling  thereof.  If  refiled,  corrected  as  required,  with¬ 
in  said  time  the  application  shall,  upon  being  accepted,  take 
priority  as  of  the  date  of  its  original  filing,  subject  to  com¬ 
pliance  with  the  further  requirements  of  the  law  and  the 
regulations  thereunder.  An^’-  corrected  application  filed 
after  the  time  allowed  shall  be  treated  in  all  respects  as  an 
original  application  received  on  the  date  of  its  refiling.  The 
date  of  the  return  of  the  application,  with  the  reasons  there¬ 
for,  shall  be  endorsed  on  the  application  and  a  record  made 
thereof  in  a  book  kept  for  recording  applications.  Like 
entries  shall  be  made  of  the  date  when  corrected  applications 
are  received  by  the  State  Engineer  and  of  the  date  when  re¬ 
jected  applications  are  returned  to  the  applicant.  Applica¬ 
tions  for  a  change  of  the  point  of  diversion  or  place  of  use 

set  forth  in  an^  approved  application  shall  be  treated  as  a 
corrected  application  within  the  meaning  of  this  section, 

excepting  lhat  such  change  of  an  approved  application  shall 
not  affect  the  priority  of  the  original  application;  provided 
that  no  change  of  the  point  of  diversion  or  place  of  use 
set  forth  in  an  approved  application  shall  operate  to 
enlarge  the  time  within  which  the  construction  work  shall 
begin  or  be  completed.  ’03,  p.  98;  ’05,  p.  156;  ’07,  p.  248;  ’09,  pp 
85,  86. 

1288x8.  Notice  of  application.  If  not  corrected  as 
required,  no  further  proceedings  shall  be  had  on  such  appli- 


18 


cations,  but  when  filed  in  compliance  with  this  Title,  the 
State  Engineer  shall  at  once  at  the  expense  of  the  applicant, 
to  be  paid  in  advance,  publish  in  some  newspaper  having  a 
general  circulation  within  the  boundaries  of  the  river  system 
or  water  source  from  which  said  appropriation  is  to  be  made, 
a  notice  of  the  application  showing  by  whom  made;  the 
quantity  of  water  sought  to  be  appropriated;  the  stream 
from  which  the  appropriation  is  to  be  made,  and  at  what 
point  on  the  stream;  the  use  for  which  it  is  to  be  approp¬ 
riated  and  by  what  means;  which  notice  shall  be  published 
at  least  once  a  week  for  thirty  day^s.  It  is  further  provided, 
that  any  change  in  the  proposed  point  of  diversion  or  place 
of  use  of  water  from  a  stream  shall  be  subject  to  the  approval 
of  the  State  Engineer,  under  the  provisions  of  section 
2818x24  hereof.  ’03,  p.  98;  ’05,  p.  150;  ’09,  p.  86. 

1288x9.  Protest  may  be  made.  Any  person,  corpora¬ 
tion,  or  association  interested  may,  at  any  time  within  thirty 
days  after  the  completion  of  the  publication  of  said  notice, 
file  with  the  State  Engineer,  a  written  protest  against  the 
granting  of  said  application,  stating  the  reason  therefor, 
which  shall  be  duly  considered  by  said  engineer,  who  shall 
approve  or  reject  said  application.  ’03,  p.  99;  ’05,  p.  157. 

1288x10,  Applications  filed  and  recorded  Action 
thereon.  All  applications  which  shall  comply  with  the 
provisions  of  this  Title  and  wuth  the  regulations  of  the  State 
Engineer’s  office,  shall  be  filed  and  recorded  in  a  suitable  book 
kept  for  that  purpose;  and  it  shall  be  the  duty  of  said  Engi¬ 
neer  to  approve  all  applications  made  in  proper  form  and 
which  are  not  in  conflict  with  prior  applications,  or  where  the 
proposed  use  will  not  impair  the  value  of  existing  rights,  pro¬ 
vided,  however,  that  an  application  for  water  made  by  a 
homesteader,  desert  entry  man  or  person  in  possession  of  land 
under  a  contract  to  purchase  the  same,  such  water  to  be  used 
exclusively  upon  the  land  of  such  person,  may  be  approved 
without  reference  to  prior  conflict.  But,  where  there  is  no 
unappropriated  water  in  the  proposed  source  of  supply,  or 
where  the  proposed  use  will  conflict  with  prior  applications 
or  with  existing  rights  except  in  the  cases  in  this  section 
expressly  provided  for.  it  shall  be  the  duty  of  the  State  En. 
gineer  to  reject  such  application,  or  to  approve  the  same 
upon  the  condition  set  forth  in  approval  that  such  conflict¬ 
ing  rights  be  acquired,  ’03,  p.  99;  ’05,  p.  157;  ’09,  p.  86. 


19 


1288x11.  Proceedings  after  action.  The  approval  or 
rejection  of  an  application  shall  be  endorsed  thereon  and  a 
record  made  of  such  endorsement  in  the  State  Engineer’s 
office.  .  d’he  application,  so  endorsed,  shall  be  returned  to  the 
applicant.  If  approved  the  applicant  shall  be  authorized,  on 
receipt  thereof,  to  proceed  with  the  construction  of  the  neces¬ 
sary  works  and  to  take  all  steps  required  to  apply  the  water 
to  the  use  named  in  thq  application  and  to  perfect  the  pro¬ 
posed  appropriation.  If  the  application  is  rejected,  the  appli¬ 
cant  shall  take  no  steps  toward  the  prosecution  of  the  pro* 
posed  work^  or  the  diversion  and  use  of  the  public  water,  so 
long  as  such  rejection  shall  continue  in  force.  ’03,  p.  99;  ’05, 
p.  157. 

1288x12.  May  require  additional  inform atiou.  Before 
either  approving  or  rejecting  an  application,  the  State  Engi¬ 
neer  may  require  such  additional  information  as  will  enable 
him  to  properly  guard  the  public  interests,  and  may  require  a 
statement  of  the  following  facts:  In  case  of  incorporated 
companies,  he  may  require  the  submission  of  the  articles  of 
incorporation,  the  names  and  places  of  residence  of  its  direc¬ 
tors  and  officers,  and  the  amount  of  its  authorized  and  its 
paid  up  capital.  If  the  applicant  is  not  an  incorporated  com¬ 
pany,  he  may  require  a  showing  as  to  the  name  or  names  of 
the  party  or  parties  proposing  to  make  the  appropriation, 
and  a  showing  of’  facts  necessary  to  enable  him  to  determine 
whether  or  not  they  have  the  financial  ability  to  carry  out 
the  proposed  work,  and  whether  or  not  the  said  application 
has  been  made  in  good  faith.  ’03,  p.  99;  ’05,  p.  157. 

1288x13.  Time  for  begiuuiug  aud  completing  work. 

In  his  endorsement  of  approval  on  any  application,  the  State 
Engineer  shall  require  that  actual  construction  work  must 
begin  within  six  mouths  from  the  date  of  such  approval,  and 
shall  state  the  time  within  which  the  construction  shall 
be  completed,  not  exceeding  five  years  from  the  date  of 
approval;  and  the  time  withia  which  water  shall  be  applied 
to  a  beneficial  use,  not  exceeding  four  years  in  addition  there¬ 
to.  Any  applicant  feeling'himself  aggrieved  by  the  endorse¬ 
ments  which  the  State  Engineer  has  made  upon  his  applica¬ 
tion,  may  appeal  therefrom  to  the  district  court  of  the 
county  in  which  the  point  of  diversion  of  the  proposed 
appropriation  is  situated. 

The  construction  of  the  works  shall  be  diligently  prose¬ 
cuted  to  completion,  and  if  one-fifth  of  the  work  is  not  com- 


20 


pleted  within  one-half  of  the  time  allowed,  as  determined  by 
the  State  Engineer,  he  may  accept  and  approve,  as  herein 
provided,  an  application  for  the  use  of  all  or  any  of  the 
waters  included  in  the  application  of  the  prior  applicant 
and  the  right  to  use  such  water  under  said  prior  application 
shall  thereupon  be  forfeited,  provided,  that  before  a  for¬ 
feiture  shall  be  declared  by  the  State  Engineer  as  provided 
herein,  he  shall  give  the  applicant  or  his  assigns  sixty 
daj^s  notice  by  registered  mail  to  his  last  recorded  address 
to  appear  on  a  date  to  be  designated  and  show  cause,  if 
any  he  has,  why  his  application  shall  not  be  declared  for¬ 
feited  in  whole  or  in  part,  and  on  such  date  the  said  appli¬ 
cant  or  his  assigns  shall  be  permitted  to  produce  any  lawful 
evidence  tending  to  show  compliance  on  his  part  with  the 
law.  At  such  hearing  the  State  Engineer  shall  be  authorized 
to  hear  and  consider  any  and  all  competent  evidence  tending 
to  show  whether  or  not  the  said  applicant  or  his  assigns  has 
or  have  complied  with  the  law;  and  provided  further  that 
the  State  Engineer  shall  allow  an  extension  of  time  on  request 
of  the  prior  applicant  equal  to  the  time  during  which  work 
was  prevented  by  the  operation  of  law,  beyond  the  power  of 
said  applicant  to  avoid. 

Provided,  that  the  State  Engineer  shall  have  power  to 
extend  the  time  for  completion  of  construction  or  for  appli¬ 
cation  to  a.  beneficial  use,  but  only  on  account  of  delays  due 
to  physical  or  engineering  difficulties  which  could  not  have 
been  reasonably  anticipated  and  in  no  case  shall  an  extension 
of  time  for  completion  of  construction  be  made  that  would 
place  the  date  of  proof  of  completion  of  construction  more 
than  five  years  from  the  date  of  approval  and  the  proof  of 
beneficial  use  more  than  nine  years  from  the  date  of  approval, 
except  that  the  State  Engineer  shall  allow  an  extension  of 
time  during  which  work  was  prevented  by  the  operation  of 
law  beyond  the  power  of  said  applicant  to  avoid. 

It  is  further  provided  that  in  case  of  the  works  con¬ 
structed  by  the  United  States  Reclamation  Service,  or  Muni¬ 
cipal  Corporations,  the  State  Engineer  may,  for  good  cause 
shown,  extend  the  time  for  completion  of  construction  and 
application  to  beneficial  use  beyond  the  limits  specified  in  this 
section.  R.  S.  ’98,  Sec.  1270,  1271;  ’03,  p.  100;  ’05,  p.  157;  ’07,  p. 
249;  ’09,  pp.  86,  87 

1288x14  Aggrieved  party  may  bring  action.  Any 

applicant  or  protestant,  who  is  dissatisfied  with  the  action 


21 


of  thft  State  Engineer  may  bring  an  action  in  the  district 
court  of  the  county  in  which  the  point  of  diversion  of  the 
water  proposed  to  be  appropriated  is  situated,  for  the  pur¬ 
pose  of  adjudicating  the  questions  involved.  Such  action 
must  be  brought  within  sixty  days  of  notice  of  the  action  of 
the  State  Engineer,  and  if  not  brought  within  that  time,  the 
Engineer  shall  proceed  In  accordance  with  the  action  taken 
thereon  by  him.  But  if  such  action  be  brought  within  said 
time,  notice  thereof  shall  be  filed  with  the  State  Engineer, 
and  thereafter  he  shall  take  no  further  action  upon  said  appli¬ 
cation  or  protest  until  the  questions  involved  are  determine^ 
by  the  courts.  Upon  the  determination  of  the  case  bj^  the 
courts,  the  clerk  of  the  district  court  in  which  the  decree  is 
filed  shall  immediately  file  a  certified  copy  thereof  with  the 
State  Engineer,  and  thereupon  he  shall  proceed  in  accordance 
with  such  decree.  ’03,  p.  100;  ’05,  p.  158;  ’09,  pp.  87,  88. 

1288x15.  State  Eagineer  to  tiotify  applicant.  Upon 
completion  of  work  proof  and  map  must  be  filed.  Sixty 
days  before  the  date  set  for  the  completion  of  the  works  to 
divert  the  water  sought  to  be  appropriated,  the  State  En¬ 
gineer,  shall  notify  the  applicant  by  registered  mail  of  the 
date  when  proof  of  completion  of  works  shall  be  due. 

On  or  before  the  date  set  for  completing  the  works  to 
divert  the  water  in  accordance  with  his  application  therefor^ 
the  applicant  shall  make  proof  thereof,  by  filing  in  the  State 
Engineer’s  office,  on  blanks  to  be  furnished  by  the  State  En¬ 
gineer,  a  statement  descriptive  of  the  work.  done.  Said 
statement  shall  be  sworn  to  by  the  applicant  and  by  two 
disinterested  witnesses,  one  of  whom  shall  be  a  reputable 
hydraulic  engineer  and  shall  be  accompanied  by  a  map,  pro¬ 
file  and  drawings,  which  shall  be  made  on  tracing  linen  and 
shall  show  fully  and  correctly,  the  location  with  reference  to 
the  United  States  land  surveys;  the  nature  and  extent  of  the 
completed  works;  the  natural  stream  or  source  from  which 
and  the  place  where  the  water  Is  diverted;  the  place  and 
manner  of  connecting  with  other  works  or  streams;  the 
ground  and  grade  lines,  the  cross-sections  and  dimensions  of 
the  various  forms  of  the  diverting  channel;  the  character  of 
the  materials  moved  and  used  in  construction;  the  several 
appliances  used  to  divert,  measure  and  regulate  the  water; 
the  character  of  all  structures  which  cross,  support  or  con¬ 
stitute  the  diverting  channel  or  any  part  of  it  and  such  other 
matter  as  will  fully  and  correctly  delineate  the  work  done 
and  conform  to  the  general  rules  and  regulations  of  the 


state  Rngineer’s  office.  The  map,  profile  and  drawings  shall 
be  certified  to  under  oath,  by  the  engineer  who  has  made 
the  same  and  by  the  applicant  whose  works  thf*3"  represent, 
said  certificates  to  be  substantially  of  such  form  as  the  State 
Engineer  shall  by  general  rule  prescribe.  As  soon  as  proof  of 
completion  of  the  works  has  been  accepted  and  approved, 
the  State  Engineer  shall  issue  his  certificate  of  completion, 
which  shall  describe  the  location,  extent  and  capacity  of  the 
works,  and  place  such  limitations  on  the  water  rights  as 
shall  be  warranted  by  the  condition  of  the  works,  but  in 
no  manner  extending  the  rights  described  in  the  application. 
Proof  made  subsequent  to  the  date  set  for  the  completion 
of  the  works  shall  cause  the  postponement  of  the  priority 
from  the  date  of  the  original  application  to  the  date  when 
the  proof  is  made  and  the  applications  subsequent  in  time 
shall  have  the  benefit  of  such  postponement  of  priority,  pro¬ 
vided,  that  in  case  of  works  constructed  by  the  National 
Government,  the  official  plans,  maps  a.nd  specifications 
approved  by  the  proper  officer  of  the  Reclamation  Service, 
shall  be  accepted  as  a  full  compliance  with  the  requirements 
of  this  section,  relating  to  maps,  profiles  and  drawings. 
’03,  p.  U)0;  ’05,  p.  115;  ’09,  pp,  88,  89. 

Certificate  of  Appropriation.  Effect  of. 

1288x16.  State  Engineer  to  notify  Applicant.  Sixty 
days  before  the  date  set  for  the  application  of  the  ’water  to 
a  beneficial  use,  the  State  Engineer  shall  notify  the  applicant 
by  registered  mail  when  proof  of  application  of  the  water  to 
a  beneficial  use  shall  be  due.  Upon  it  being  made  to  appear 
to  the  satisfaction  of  the  State  Engineer  that  an  appropria¬ 
tion  has  been  perfected  in  accordance  with  the  application 
therefor,  and  that  the  water  applied  for  has  been  put  to  a 
beneficial  use,  it  shall  be  the  duty  of  the  State  Engineer  to 
issue  a  certificate,  in  duplicate,  to  the  party  making  the 
same,  setting  forth  the  name  and  postoffice  address  of  the 
person,  corporation  or  association  by  whom  the  water  is  to 
be  used;  the  quantity  of  water  in  acre  feet  or  the  flow  of 
water  in  second  feet;  the  purpose  for  which  the  water  is  to  be 
used;  the  time  during  which  the  water  is  to  be  used  each 
year;  the  name  of  the  stream  or  source  from  which  the  water 
is  to  be  diverted;  the  place  on  the  stream  or  source  where  the 
water  is  to  be  diverted;  the  priority  number  of  the  right; 
the  date  of  the  appropriation,  and  such  other  matter  as 
will  fully  and  completely  define  the  extent  and  conditions  of 


23 


actual  application  of  the  water  to  a  beneficial  use;  in  no 
manner,  however,  shall  the  certificate  extend  the  rights 
described  in  the  application,  as  further  defined  by  the  certifi¬ 
cate  of  completion.  Failure  to  make  proof  of  beneficial  use 
of  the  water  on  or  before  the  date  set  therefor,  shall  cause 
the  postponement  of  the  priority  from  the  date  fixed  there¬ 
tofore,  to  the  date  when  the  proof  of  beneficial  use  of  the 
water  is  made  and  applications  subsequent  in  time  shall 
have  the  benefit  of  such  postponement  of  priority.  One  copy 
of  said  certificate  shall  be  filed  in  the  office  of  the  State  En¬ 
gineer,  and  the  other  copy  shall  be  delivered  to  the  approp- 
riator  and  shall  within  thirty  days  be  recorded  by  him  in  the 
office  of  the  county  recorder  of  the  county  where  the  water  Is 
diverted  from  the  natural  stream  or  source.  The  certificate 
so  issued  and  filed  shall  be  prima  facie  evidence  of  the  approp- 
riator’s  right  to  the  use  of  the  water  in  the  quantity,  for  the 
purpose  and  during  the  time  mentioned  therein  and  shaill  be 
evidence  of  such  right.  The  letter  “B”  shall  be  prefixed  to 
the  priority  number  of  each  certificate  so  issued  to  dis¬ 
tinguish  it  from  certificates  issued  by  the  district  courts. 
’03,  p.  101;  ’05,  p.  159;  ’09,  pp.  89,  90. 

1288x1  7.  Priority.  The  priority  number  of  an  appropri¬ 
ation  shall  be  determined  by  the  date  of  receiving  the  written 
application  in  the  State  Engineer’s  office,  except  as  provided 
in  sections  1288x15  and  1288x16  hereof.  Rights  claimed  under 
applications  for  the  appropriation  of  water  may  be  trans¬ 
ferred  or  assigned  by  instruments  in  writing.  Such  instru¬ 
ments  when  acknowledged  or  proven  and  certified  in  the 
manner  provided  by  law  for  the  acknowledgment  or  prov¬ 
ing  of  conveyances  of  real  estate,  may  be  filed  and  recorded 
in  the  office  of  the  State  Engineer,  and  shall  from  the  time  of 
filing  the  same  for  record  in  said  office  impart  notice  to  all 
persons  of  the  contents  thereof.  For  recording  any  such 
instrument  the  State  Engineer  shall  collect  the  same  fees  as 
are  allowed  by  law  to  C(mnty  recorders  for  like  service,  in 
addition  to  the  fee  for  filing.  ’03,  p.  101;  ’05,  p.  159;  ’09,  p.  90. 


CHAPTER  3. 

General  Provisions  Concerning  Water. 

1288x18.  Waters  public  property.  The  water  of  all 
streams  and  other  sources  in  this  State,  whether  flowing 


24 


above  or  under  the  ground,  in  known  or  defined  channels,  is 
hereby  declared  to  be  the  property  of  the  public,  subject  to 
all  existing  rights  to  the  use  thereof.  ’03,  p.  101 ;  ’05,  p.  159. 

1288x19  Standard  of  tneasuretuetit.  .The  standard 
unit  of  measurement  of  the  flow  of  water  shall  be  the  dis¬ 
charge  of  one  cubic  foot  per  second  of  time,  which  shall  be 
known  as  a  second  foot;  and  the  standard  unit  of  measure¬ 
ment  of  the  volume  of  water  shall  be  the  acre  foot,  being  the 
amount  of  water  upon  an  acre  covered  one  foot  deep,  equiva¬ 
lent  to  forty-thrte  thousand  five  hundred  and  sixty  cubic  feet 
R.  S.  ’98,  !Sec.  1282,  1283;  ’01,  p.  143;  ’03,  p.  101;  ’05  p.  100. 

1288x20.  Beneficial  use.  Beneficial  use  shall  be  the 
basis,  the  measure,  and  the  limit  of  all  rights  to  the  use  of 
water  in  this  State.  R.  S.  ’98,  Sec.  1262;  ’03,  p.  101;  ’05,  p.  160. 

1288x21.  Eminent  domain.  The  use  of  water  for  bene¬ 
ficial  purposes,  as  provided  in  this  Title,  is  hereby  declared  to 
be  a  public  use.  Any  person,  corporation,  or  association  shall 
have  a  right  of  way  across  ana  upon  public,  private,  and 
corporate  lands,  or  other  right  of  way,  for  the  construction, 
maintenance,  repair,  and  use  of  all  necessary  reservoirs, 
dams,  water  gates,  canals,  ditches,  flumes,  tunnels,  or  other 
means  of  securing,  storing,  and  conveying  water  for  irriga¬ 
tion  or  for  any  necessary  public  use,  or  for  drainage,  upon 
payment  of  just  compensation  therefor,  but  such  right  of 
way  shall  in  all  cases  be  exercised  in  a  manner  not  to  unneces¬ 
sarily  impair  the  practical  use  of  any  other  right  of  way, 
highway,  or  public  or  private  road,  nor  to  unneccessarily 
injure  any  public  or  private  property.  8uch  right  may  be 
acquired  in  the  manner  provided  by  law  for  the  taking  of 
private  property  for  public  use.  R.  S.  98,  Sec  1277;  ’03,  p.  103; 
’05,  p.  160. 

1288x22.  Id  RigRt  to  enlarge  existing  canal.  When 
any  person,  corporation,  or  association  desires  to  convey 
water  for  irrigation  or  any  other  beneficial  purpose, 
and  there  is  a  canal  or  ditch  already  constructed  that 
can  be  enlarged  to  convey  the  required  quantity  of  water, 
then  such  person,  corporation,  or  association,  or  the  owner 
or  owners  of  the  land  through  which  a  new  canal  or  ditch 
would  have  to  be  constructed  to  convey  the  quantity  of 
water  necessary,  shall  have  the  right  to  enlarge  said  canal  or 
ditch  already  constructed,  by  compensating  the  owner  of  the 
canal  or  ditch  to  be  enlarged,  for  the  damage,  if  any,  caused 
by  said  enlargement;  provided,  that  said  enlargement  shall 


25 


be  done  at  any  time  from  the  first  day  of  October  to  the  first 
day  of  March,  or  any  other  time  that  may  be  agreed  upon 
with  the  owner  of  said  canal  or  ditch.  R.  S.  ’98,  Sec  1278; 
03,  p.  103;  ’05,  p.  160. 

1288x23.  Water  reverts  upon  abaudoumeiit.  When'the 
appropriator  or  his  successor  in  interest  abandons  or  ceases 
to  use  water  for  a  period  of  seven  years,  the  right  ceases,  and 
thereupon  such  water  reverts  to  the  public,  and  may  be  again 
appropriated,  as  provided  in  this  Title;  but  questions  of 
abandonment  shall  be  questions  of  fact,  and  shall  be  deter¬ 
mined  as  are  other  questions  of  fact.  R.  S.  ’98,  Sec,  1262;  ’03, 
p.  101;  ’05,  p.  160. 

1288x24.  Place  of  diversioo  may  be  changed.  Vested 
rights  protected.  Any  ;person,  corporation,  or  asso¬ 
ciation  entitled  to  the  use  of  water,  may  change  the 
place  of  diversion  and  may  use  the  water  for  otner 
purposes  than  those  for  which  it  was  originally  ap¬ 
propriated,  but  no  such  change  shall  be  made,  if  it 
impairs  any  vested  right,with<)ut  just  compensation;  no  change 
of  point  of  diversion  or  purpose  of  use  shall  be  made  except  on 
the  approval  of  an  application  of  the  owner  by  the  State 
Engineer.  Before  the  approval  of  an  application  the  State 
Engineer  must,  at  the  expense  of  the  applicant,  to  be  paid  in 
advance,  give  notice  thereof  by  publication  in  some  news¬ 
paper  having  general  circulation  within  the  boundaries  of  the 
river  system  or  water  source  in  which  the  point  of  diversion 
of  the  water  is  located;  such  notice  shall  give  the  name  of  the 
applicant,  the  quantity  of  water  involved,  the  stream  or 
source  from  which  the  appropriation  has  been  'made,  the 
point  on  the  stream  or  source  where  the  water  is  diverted, 
the  point  to  which  it  is  proposed  to  change  the  diversion  of 
the  water,  the  place,  purpose  and  extent  of  present  use,  and 
the  place,  purpose  and  the  extent  of  proposed  use.  Said 
notice  to  be  published  at  least  once  a  week  for  a  period  of 
thirty  days.  Any  person,  corporation  or  association  inter¬ 
ested,  may  at  any  time  within  thirty  days  after  the  com¬ 
pletion  of  the  publication  of  said  notice,  file  with  the  State 
Engineer  a  protest  against  the  granting  of  said  application 
for  change  of  point  of  diversion  or  purpose  of  use,  stating  the 
reason  therefor,  which  shall  be  duly  considered  by  the  State 
Engineer  who  shall  approve  or  reject  said  application  for 
change  of  point  of  diversion  or  purpose  of  use.  Such  appli¬ 
cation  shall  not  be  rejected  solely  for  the  reason  that  such 


26 


change  would  impair  vested  rights  of  others,  but  the  appli¬ 
cation  if  otherwise  proper  may  be  approved  conditionally 
upon  such  conflicting  rights  being  acquired.  The  determina¬ 
tion  of  the  State  Engineer  shall  be  final  unless  appeal  is  taken 
to  the  district  court  of  the  county  in  which  the  point  of 
diversion  of  water  is  situated,  within  sixty  days  of  notice  of 
action  of  the  State  Engineer.  Any  person  holding  an 
approved  application  for  the  appropriation  of  water  may 
change  the  point  of  diversion  or  place  of  use  under  proceed¬ 
ings  taken  substantially  as  above  set  forth.  R.  S.  ’98,  Sec. 
1263;  ’03,  p.  102;  ’05,  p.  160;  ’09,  pp.  90,  91. 

1288x25.  Water  may  be  commingled  and  recovered. 

Any  appropriated  water  may  be  turned  into  the  channel  of 
any  natural  stream,  or  into  a  reservoir  constructed  across 
the  bed  of  any  natural  stream,  and  commingled  with  its 
waters  and  then  be  recovered,  but,  in  so  doing,  the  original 
water  in  such  stream  or  reservoir  must  not  be  diminished  in 
quantity  or  deteriorated  in  quality.  R.  S.  ’98,  Sec.  1264;  ’03, 
p.  102;  ’05,  p.  161. 

1288x26.  Headgates.  Every  person,  corporation,  or  as¬ 
sociation  using  water  in  this  State  shall  construct  and  main, 
tain  a  substantial  headgate  at  the  point  where  the  water  is 
diverted,  and  a  measuring  device,  as  near  the  head  of  the  di¬ 
verting  channel  as  is  practicable,  for  the  purpose  of  regulat¬ 
ing  aud  measuring  the  quantity  of  water  that  may  be  di¬ 
verted  into  the  channel  from  the  stream  or  other  source.  Said 
headgate  and  measuring  device  shall  be  of  such  pattern  as 
the  State  Engineer  shall  approve,  and  shall  be  constructed 
within  thirty  days  after  request  from  him.  Any  person,  cor¬ 
poration,  or  association  failing  to  comply  wdth  the  provis¬ 
ions  of  this  section  shall  be  guilty  of  a  misdemeanor,  and  the 
State  Engineer  is  hereby  authorized  to  furnish  plans  and  bills 
of  material  for  such  devices,  at  the  expense  of  the  State, 
when  in  his  judgment  the  use  of  such  devices  will  be  encour¬ 
aged  thereby.  ’01,  p.  145;  ’03,  p.  102;  ’05,  p.  161. 

1288x27.  Priority  among  appropriators  Appropria- 
tors  shall  have  priority  among  themselves  according  to  the 
dates  of  their  respective  appropriations,  so  that  each  appro- 
priator  shall  be  entitled  to  receive  the  whole  supply  to  which 
his  certificate  entitles  him  before  any  subsequent  appropria- 
tor  shall  have  any  right;  provided,  that  whenever  the  natur¬ 
al  flow  of  any  stream  shall  have  receded  in  volume  in  the  an¬ 
nual  low  water  stage,  then  the  rights  of  all  users  to  such 
flow  at  such  stage  shall  be  deemed  to  be  equal  as  to  priority, 


27 


and  the  water,  when  at  or  below  such  stage,  shall  be  appor¬ 
tioned  pro  rata  among  said  users.  But  In  times  of  scarcity, 
while  priority  of  appropriation  shall  give  the  better  rights  as 
between  those  using  water  for  the  same  purpose,  the  use  for 
domestic  purposes  shall  have  preference  over  use  for  all  other 
purposes,  and  use  for  agricultural  purposes  shall  have  pref¬ 
erence  over  use  for  any  other  purpose  except  domestic  use. 
R.  S.  ’98,  Sec.  1265;  ’03,  p.  102;  ’05,  p.  161. 

1288x28.  Stock  may  be  taken  in  other  irrigation  com¬ 
panies.  Any  irrigation  or  reservoir  company,  incorporated 
and  existing  under  the  la  ws  of  this  State,  may  purchase  or 
subscribe  for  the  capital  stock  of  any  other  similar  corpora¬ 
tion  which,  at  the  time  of  such  purchase  or  subscription,  shall 
be  or  is  about  to  be  incorporated;  provided,  that  such  pur¬ 
chase  or  subscription  shall  be  made  only  when  permitted  by 
the  original  articles  of  incorporation  or  by  amendment  there¬ 
to  proposed  and  adopted  according  to  law,  and  such  corpor¬ 
ations  are  hereby  permitted  and  authorized  to  amend  their 
articles  of  incorporation  so  as  to  authorize  such  purchase  or 
subscription.  R.  S.  ’98,  Sec.  1276;  ’03;  p.  102;  ’05,  p.  162. 

1288x29.  Ditches  must  be  kept  in  repair  to  prevent 

damage.  The  owner  or  owners  of  any  ditch,  canal,  flume,  or 
other  water  coarse  shall  maintain  the  same  in  repair,  so  as  to 
prevent  waste  of  water  or  damage  to  the  property  of  others. 
Such  persons  are  required,  by  bridge  or  otherwise,  to  keep 
such  ditch,  canal,  flume,  or  other  water  course  in  good  repair 
where  the  same  crosses  any  public  road  or  highway,  so  as  to 
prevent  obstruction  to  travel,  or  damage  or  overflow  to  such 
public  road  or  highway.  R.  S.  ’98,  Sec.  1279;  ’03,  p.  103;  ’05,  p. 
162. 

1288x30.  Each  person  or  corporation  liable  for  propor¬ 
tionate  expense.  When  two  or  more  persons,  companies,  or 
corporations  are  associated  by  agreement  or  otherwise,  in  the 
nse  of  any  dam,  canal,  reservoir,  ditch,  flume,  or  other  means 
of  conserving  or  conveying  water  for  the  irrigation  of  laud, 
or  for  other  purposes,  each  of  them  shall  be  liable  to  the  other 
for  the  reasonable  expense  of  maintaining,  operating,  and 
controlling  the  same,  in  proportion  to  the  share  in  the  use  or 
ownership  of  the  water  to  which  he  is  entitled.  If  any  per¬ 
son, company, or  corporation  refuses  or  neglects  to  pay  his  pro¬ 
portion  of  such  expense,  after  five  days’  notice  in  writing  de¬ 
manding  such  payment,  he  shall  be  liable  therefor  in  an  action 
for  contribution;  provided,  that  in  any  company  or  corpora- 


28 


tion  owning  or  controlling  more  than  one  canal  or  ditch,  for 
the  purpose  of  improving  or  keeping  the  same  in  repair,  the 
users  of  water  shall  not  be  required  to  pay  any  expenses  or 
assessments  in  any  canal  or  ditch,  other  than  the  one  in 
which  they  are  directly  interested.  R.  8.  ’98,  Sec.  1280;  ’03,  p. 
103;  '05,  p.  1«2. 

1288x31.  Water  rights  appurteiiatit  to  laad  under 
govemmeut  works.  All  water  hereafter  appropriated  for  ir¬ 
rigation  purposes  from  works  constructed  or  controlled  by 
the  United  States  shall  be  appurtenant  to  specified  lands 
owned  or  occupied  by  the  persons  claimi  ng  the  right  to  use 
the  water,  so  long  as  the  water  is  used  beneficially  thereon; 
provided,  that  if  for  any  reason  it  should  at  any  time  become 
impracticable  to  use  water  beneficially  or  economically  for  the 
irrigation  of  any  land  to  which  the  right  of  the  same  is  ap¬ 
purtenant,  said  right  may  be  severed  from  said  land,  and  si¬ 
multaneously  transferred,  and  become  appurtenant  to  other 
land,  without  losing  priority  of  right  theretofore  established, 
if  such  change  can  be  made  without  detriment  to  existing 
rights;  and  in  case  of  such  change,  the  owner  of  such  water 
right  shall  execute  and  acknowledge  a  proper  instrument  of 
transfer  describing  therein  the  land  from  and  to  which  such 
water  is  transferred,  which  instrument  shall  be  recorded  in 
the  county  recorder’s  office  of  the  county  in  which  the  land  is 
situated.  ’05,  p.  162. 

1288x32.  , Rights  to  water  pass  with  laud.  Exceptions 

A  right  to  the  use  of  water  appurtenant  to  the  land  shall 
pass  to  the  grantee  of  such  land,  and,  in  cases  where  such 
right  has  been  exercised  in  irrigating  different  parcels  of  land 
at  different  times,  such  rights  shall  pass  to  the  grantee  of 
any  parcel  of  land  on  which  such  right  was  exercised  next 
preceding  the  time  of  the  execution  of  any  conveyance  there¬ 
of;  subject,  however,  in  all  cases  to  payment  by  grantee  of  any 
such  conveyance  of  all  amounts  unpaid  on  any  assessment  then 
due  upon  any  such  right;  provided,  that  any  such  right  to 
the  use  of  water,  or  any  part  thereof,  may  be  reserved  by  the 
grantor  in  any  such  conveyance,  by  making  such  reservation 
in  express  terms  inserted  in  such  conveyance,  or  may  be 
separately  conveyed.  R.  S.  ’98,  Sec.  1281;  ’03  p.  104;  ’05,  p.  163. 

1288x33.  Water  rights  trausferred  by  deed.  Excep¬ 
tions.  Water  rights  shall  be  transferred  by  deeds,  in  sub¬ 
stantially  the  same  manner  as  real  estate,  except  when  they 
are  represented  by  shares  of  stock  in  a  corporation,  and  such 


29 


deeds  shall  be  recorded  in  the  office  of  the  recorder  of  the 
county  where  the  place  of  diversion  of  the  water  from  its 
natural  channel  is  situated.  Every  deed  of  water  right  so 
recorded  shall,  from  the  time  of  filing  the  same  with  the 
recorder  for  record,  impart  notice  to  all  persons  of  the  con¬ 
tents  thereof,  and  subsequent  purchasers,  mortgagees,  and 
lien  holders  shall  be  deemed  to  purchase  and  take  with 
notice.  ’03,  p.  104;  ’05,  p.  163. 

1288x34.  Id.  Deeds  must  be  recorded.  Every  deed  of 
water  right  within  this  State  hereafter  made,  which  shall 
not  be  recorded  as  provided  in  this  title,  shall  be  void  as 
against  any  subsequent  purchaser  in  good  faith,  and  for  a 
valuable  consideration,  of  the  same  water  right,  or  any  por¬ 
tion  thereof,  where  his  own  deed  shall  be  duly  recorded. 
’03,  p.  104;  ’05,  p.  163. 

1288x35.  Penalty.  Any  person,  corporation,  or 
association  who  shall  in  any  way  interfere  with,  injure, 
destroy,  or  remove  any  dam,  headgate,  weir,  or  other 
appliance  for  the  diversion,  apportionment,  or  measurement 
of  water,  or  who  shall  interfere  with  any  of  the  persons 
authorized  by  this  title  to  apportion  water,  while  in  the 
discharge  of  their  duties,  shall  be  guilty  of  a  misdemeanor, 
and  shall  also  be  liable  in  damages  to  any  person  injured  by 
such  unlawful  act.  ’03,  p.  104;  ’05,  p.  163. 

1288x36.  Obstructiotts  to  right  of  way  forbidden. 

Whenever  any  person,  corporation,  or  association  has 
the  right  of  way  for  canals  or  other  water  courses,  it  shall  be 
unlawful  for  any  person  to  place  or  maintain  in  place  any 
obstruction,  by  fence  or  otherwise,  along  or  across  such 
canals  or  water  courses,  without  providing  gates  sufficient 
for  the  passage  of  the  owners  of  such  canals  or  water  courses 
or  their  agents.  Any  person,  corporation,  or  association 
violating  the  provisions  of  this  section  shall  be  guilty  of  a 
misdemeanor.  R.  S.  ’98,  Sec.  1286;  ’03,  p.  104;  ’05,  p  163. 

1288x37.  Legal  advisors  to  State  Engineer.  In  all 

matters  requiring  legal  advice  in  the  performance  of  his 
duties  and  the  prosecution  or  defense  of  any  action  grow¬ 
ing  out  of  the  performance  of  his  duties,  the  Attorney  General 
of  the  State,  and  the  district  attorney  of  the  district  in  which 
any  legal  question  arises,  shall  be  the  legal  advisers  of  the 
State  Engineer,  and  they  are  hereby  required  to  perform  any 
and  all  legal  services  required  of  them  by  him,  without  other 
compensation  than  their  salaries  now  or  hereafter  fixed  by 
law.  ’03,  p.  105;  ’05,  p.  164. 


30 


1388x38.  Assistant  atid  equipment.  For  the  purpose 
of  carrying  into  effect  the  provisions  of  this  title  the  State 
Engineer  shall  have  power  to  employ  all  necessary  assistants, 
purchase  all  necessary  equipment,  and  do  all  other  necessary 
things,  the  cost  of  which  shall  be  paid  by  the  State,  upon 
presentation  to  the  State  Auditor  of  monthly  statements, 
certified  by  the  State  Engineer  and  approved  by  the  State 
Board  of  Examiners;  provided,  that  no  expense  shall  be 
incurred  by  the  State  Engineer  in  the  performance  of  his 
duties  which  will  exceed  the  amount  appropriated  for  that 
purpose.  ’01,  p.  142;  ’03,  p.  105;  ’05,  p.  165. 

1288x39.  Fees  of  referee  aud  stenographer..  The 

fees  of  referee  and  stenographer  shall  be  fixed  by  the  court, 
and,  together  with  any  other  expenses  not  herein  provided  for 
that  may  be  incurred  in  carrying  out  the  provisions  of  this 
title,  shall  be  paid  out  of  the  State  Treasury,  upon  certifi¬ 
cates  from  the  proper  district  judge  to  the  State  Auditor  of 
the  amount  due  each  person  for  such  service.  ’03,  p.  105; 
’05,  p.  165. 

1288x40.  Who  may  be  made  parties  to  actions. 
Damages  joint  ownership.  In  any  action  hereafter  com¬ 
menced  for  the  protection  of  rights  acquired  to  water  under 
the  laws  of  this  State,  tne  plaintiff  may  make  any  or  all  per¬ 
sons  who  have  diverted  water  from  the  same  stream*  or 
source  parties  to  such  action,  and  the  court  may  in  one 
judgment  settle  the  relative  priorities  and  rights  of  all 
the  parties  to  such  action.  When  damages  are  claimed  for 
the  wrongful  diversion  of  water  in  any  such  action,  the  same 
may  be  assessed  and  apportioned  by  the  jury  in  their  verdict, 
or  by  the  court  if  the  case  be  tried  without  a  jury,  and  judg¬ 
ment  thereon  may  be  entered  for  or  against  one  or  more  of 
several  plaintiffs,  or  for  or  against  one  or  more  of  sev’eral 
defendants,  and  may  determine  the  ultimate  rights  of  the 
the  parties  between  themselves  In  any  action  concerning 
joint  water  rights,  or  joint  rights  in  water  ditches,  unless 
partition  of  the  same  is  asked  by  the  parties  to  the  action » 
the  court  shall  hear  and  determine  such  controversy  as 
if  the  same  were  several  as  well  as  joint.  R.  S.  ’98.  Sec.  1274; 
’03,  p.  105;  ’05,  p.  165. 

1288x41.  Effect  of  certain  repeal.  The  repeal  by 
the  Revised  Statutes  of  sections  2403-2427,  both  inclusive,  of 
the  Compiled  Laws  of  Utah,  1888,  shall  not  be  construed  to 
effect  the  existence  of  any  district  or  company  organized 
under  the  aforesaid  sections;  but  any  such  company  or 


31 


district  shall,  notwithstanding  such  repeal,  continue  in 
existence  with  all  the  rights,  [)rivileges,  and  limitations  here¬ 
tofore  conferred  or  imposed  upon  it  by  law,  until  disincor¬ 
porated  or  dissolved  according  to  law.  In  any  case  in  which 
an  irrigation  company  or  district  shall  have  a  right  of  action 
against  a  delinquent  member  of  such  company  or  district 
for  the  non-  payment  of  taxes  voted  according  to  law,  the 
board  of  directors  thereof  may  proceed  to  sell  the  interest  of 
such  member  in  the  canals  or  ditches  of  such  company  or  dis¬ 
trict  and  his  right  to  the  use  of  the  water  flowing  therein, 
K.  S.  ’98,  Sec.  1287;  ’03,  p.  106;  ’05,  p.  165. 

1288x42.  Dissolution  of  irrigation  district.  When 
ever  a  petition  is  presented  to  the  board  of  trustees  of  any 
irrigation  company  or  district  organized  under  section 
2403-2427,  C.  L.  U.  1888,  signed  by  one-fourth  of  the  landhol¬ 
ders  in  the  district,  asking  for  the  abandonment  •  of  further 
operations  by  the  company  or  district,  the  board  of  trustees 
thereof  shall  call  special  meeting,  at  which  the  question  of 
such  abandonment  shall  be  submitted.  Notice  of  the  time 
and  place  and  subject  of  such  meeting  shall  be  given  by  the 
board  of  trustees  of  the  district  at  least  ten  days  previous 
thereto,  by  advertising  at  least  three  times  in  some  news¬ 
paper  having  general  circulation  in  the  district,  or  by  post¬ 
ing  notices  in  three  public  places  therein.  If  three-fifths  of  the 
landholders  of  the  district  voting  at  such  election  shall  vote 
for  such  abandonment.  It  shall  be  the  duty  of  the  board  of 
trustees  to  petition  the  district  court  of  the  county  in  which 
the  greater  portion  of  the  lands  of  the  district  are  situated  for 
the  winding  up  of  the  affairs  of  such  company  or  district;  and 
thereafter^  proceedings  shall  be  had  which  shall  conform  as 
nearly  as  may  be  with  the  proceedings  for  the  voluntary  dis¬ 
solution  of  corporations.  .R,  S. ’98,  Sec.  1288;  ’03,  p.  71;  ’05, 

p  166. 

1288x43.  “Received”  atid  “filed”  defined.  When¬ 
ever  the  word  “received”  is  used  in  this  title,  with  reference 
to  any  paper  deposited  in  the  office  of  the  State  Engineer,  it 
shall  be  deemed  to  mean  the  date  when  such  paper  was  first 
received  at  the  State  Engineer’s  office;  and  whenever  the 
term  “filed”  is  used  in  such  reference,  it  shall  be  deemed  to 
mean  the  date  when  such  paper  was  completed  and  filed  in 
said  office.  ’05,  p,  166. 

Approved,  March  11,  1909. 


Section  970x»  Compiled  Laws  of  Utah, 
1907,  as  Amended  1909* 

970x.  Fees  of  State  Engineer  The  State  Engineer  shall 
collect  the  following  fees,  which  shall  be  paid  by  him  into  the 
State  Treasury  on  the  first  Monday  in  January,  April,  July 
and  October  of  each  year. 

For  examining  and  approving  plans  and  specifications  for 
any  dam,  one  dollar  for  each  and  every  foot  in  height  of  the 
dam  to  be  built;  and,  if  necessary  to  inspect  the  site  where  the 
dam  is  to  be  built,  an  additional  charge  of  ten  dollars  per  day 
and  expenses  shall  be  paid. 

For  inspecting  any  diverting  works,  by  request,  ten  dol¬ 
lars  per  day  and  expenses. 

For  examining  and  filing  applications  to  appropriate  any 
quantity  of  water  up  to  and  including  ten  cubic  feet  per 
second,  for  each  such  application  two  and  one-half  dollars* 

Applications  for  water  that  specify  quantities  greater 
than  ten  cubic  feet  per  second,  a  fee  of  one  dollar  for  each 
cubic  foot  above  the  ten  cubic  feet  hereinbefore  mentioned. 

For  applications  which  contemplate  the  storage  of  water, 
a  minimum  fee  of  $2.50  for  each  such  application. 

Applications  for  water  that  specify  quantities  greater 
than  one  hundred  twenty-five  acre  feet,  a  fee  of  two  cents  for 
each  acre  foot  of  water  to  be  stored. 

Provided,  however,  that  when  the  filing  fee  for  any  appli¬ 
cation  for  water  shall  exceed  $1000,  the  balance  of  the  fee  in 
excess  of  $1,000,  may  at  the  option  of  the  applicant,  be  paid 
at  the  time  when  proof  of  the  completion  of  the  works 
is  submitted 

For  examining  map,  profile  and  drawings  that  are  part 
of  the  proof  of  appropriation,  five  dollars. 

For  approving  and  recording  completed  applications, 
two  and  50-100  dollars. 

For  issuing  certificates  of  appropriation,  each,  one  dollar. 

For  examing  and  filing  notices  of  protest,  each,  two  and 
50-100  dollars. 

For  filing  any  other  paper,  one  dollar. 

For  certified  copy  of  any  paper,  per  folio,  twenty  cents. 

For  blue  print  copy  of  any  map,  profile  or  drawing,  per 
square  foot,  ten  cents. 

For  each  certificate  to  copy  of  paper,  drawing  or  map, 
fifty  cents;  Provided,  that  the  provisions  of  section  970x  shall 
not  apply  to  works  prosecuted  under  the  supervision  of  the 
United  States  Reclamation  Service. 


